Child Custody Arrangements: Their Characteristics and Outcomes

2004-FCY-3E

2. ISSUES RELATED TO TERMINOLOGY

Terminological issues abound in the research literature on custody arrangements after separation and divorce.

2.1 Custody and Access

Many countries, including Australia, England and Scotland, no longer use the terms custody and access "with their connotations of ownership and winner/consolation prize winner." (Carberry 1998). In the United States and in some Commonwealth countries, access is generally called visitation or contact.

In Canada, the report of the Special Joint Committee on Child Custody and Access recommended that the terms custody and access no longer be used in the Divorce Act. Instead, the Committee suggested that the meaning of both terms be incorporated into the new term shared parenting. (Special Joint Committee on Child Custody and Access 1998). The federal government's response was, in part, as follows:

The challenge is to identify a term that would ₀ avoid the problems currently associated with the terms custody and access as well as possible diverse connotations and understandings of the word "shared." The term would need to be consistent with a child-centred approach and would have to be carefully defined to have a clear and accepted understanding and use by both the courts and the public.

It may be that new child-centred words and phrases will need to be identified to describe a variety of particular parenting responsibilities and arrangements for use in parenting plans and court orders (Government of Canada, 1999: 13).

2.2 Shared Custody

The following terms are used in the research literature to describe shared custody: shared parenting, dual parenting, dual residential placement or dual residence, joint physical custody, time-sharing and co-parenting. In Canada, shared custody is defined in the 1997 Federal Child Support Guidelines under the Divorce Act as an arrangement in which the children spend a minimum of 40 percent of the time living with each parent.

In the United States, joint physical custody is the most common term for shared custody. In some studies, especially in earlier work, researchers do not clearly distinguish between joint legal and joint physical custody;[1] joint legal custody is sometimes assumed to be the same as joint physical custody. Joint legal custody is defined as an arrangement in which the parents share responsibility for important decisions in their children's lives (such as those surrounding medical treatment and schooling) with no implications for the residential placement of the child.

Unless otherwise specified, this report uses the terms shared custody and joint physical custody to mean arrangements in which the parents share the physical custody of the children and the children have two residences. In the majority of research reports, the amount of time spent by the children in the two residences is not specified. In addition, not all research on shared parenting or co-parenting can be assumed to describe arrangements that closely resemble shared custody. These terms are used much more loosely than is shared custody in the Federal Child Support Guidelines.[2] In fact, what is called shared custody, shared parenting or co-parenting in the literature is often what in Canada would be called sole custody with frequent access.

In the Stanford Child Custody Project, which is among the most rigorous studies on custody arrangements and often quoted in this report, dual residence was defined as an arrangement in which each parent has responsibility for the children for "significant periods"—four or more overnights in a two week period in the second residence (Maccoby et al. 1988). This definition is based in part on parents' perceptions: in the majority of cases in which the children spent four or more overnights with each parent in two weeks, the parents said that the children lived with both parents. This schedule represents 29 percent of nights spent in the second home, which is quite different from the 40 percent standard found in the Federal Child Support Guidelines in this country.

Time sharing in shared custody arrangements in the United States can range from 20 to 50 percent of the year (Pruett and Santangelo, 1999: 406). More typically, the proportion of time (or of the year) children spend in the second residence ranges from 30 to 50 percent, which appears to represent the standards for shared custody in child support guidelines in many U.S. states.

All researchers agree that equal shared custody—in which the children spend half their time in each residence—is a rare phenomenon (see, for example, Lye, 1999; and Marcil-Gratton and Le Bourdais, 1999).

Advocates of shared custody argue that it lessens the feeling of losing a parent that children may experience after a divorce and is fair to both parents. Because of the high degree of co-operation that shared custody is presumed to require, some courts are reluctant to order this arrangement unless both parents agree.[3] Many jurisdictions also have statutory provisions that limit visitation and prohibit shared custody when there is evidence of family violence.

2.3 Split Custody

In split custody arrangements, parents divide custody of their children, with each parent having physical custody of one or more children. The literature suggests that courts try not to separate siblings when awarding custody. Informal arrangements of this type are also believed to be rare. Split custody is believed to evolve over time, especially when older children are involved (Kelly, 1994).

2.4 Sole Maternal or Paternal Custody

In sole custody arrangements, the children live with one parent. The other parent may or may not have rights of access and rights of decision making. When the other parent has rights of decision making, this is called joint legal custody. Sole maternal custody is the norm in Canada and most other countries for which there are data.